Court File and Parties
COURT FILE NO.: CV-16-549639-00CP DATE: 20230816 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
MATTHEW ROBERT QUENNEVILLE, LUCIAN TAURO, MICHAEL JOSEPH PARE, THERESE H. GADOURY, AMY FITZGERALD, RENEE JAMES, AL-NOOR WISSANJI, JACK MASTROMATTEI, JAY MacDONALD and JUDITH ANNE BECKETT Plaintiffs – and – ROBERT BOSCH GmbH Defendant
Counsel: Luciana P. Brasil for the Plaintiffs
Proceeding under the Class Proceedings Act, 1992
HEARD: In writing
PERELL, J.
Endorsement
[1]
Background
In this certified and settled class action under the Class Proceedings Act, 1992, the Plaintiffs sued Robert Bosch GmbH and others. In the action, it was alleged that the Defendants manufactured “defeat devices” for VW, Audi, and Porche motor vehicles.
2The original action involving VW, Audi and Porsche was the subject of two separate settlements, one for vehicles equipped with 2L engines (the “2L Settlement”), which settlement was approved on April 21, 2017. 1
3The second settlement was for vehicles equipped with 3L engines (the “3L Settlement”) and the settlement was approved on April 19, 2018. 2
4The action against Robert Bosch GmbH settled (the “Bosch Settlement”), and its settlement was approved on September 23, 2020. 3
5The Bosch Settlement was designed to complement the 2L Settlement and the 3L Settlement.
[6]
The Administrator's Final Report and Residue
Class Counsel are now in the final stages of completing the implementation of the Bosch Settlement.
7On March 23, 2023, Class Counsel received the final report from RicePoint Administration Inc. (“RicePoint”), the court-appointed claims administrator.
[8] The Administrator’s Final Report indicates that: a. A total of 4,657 payments were made with a combined value of $4,750,250. b. Some of the persons who received payments did not cash their cheques. c. With the approval of the Court, the Claims Administrator sent a reminder to all persons who had uncashed cheques so they would have a final opportunity to cash their cheques. d. Following this reminder process, the final tally of cashed cheques is 4,045 payments totaling $4,161,000, leaving 612 payments uncashed (totaling $589,250). e. There is an anticipated residue of $2,267,085.89.
9The residue is larger than anticipated. The explanation is twofold.
10First, the projections for the total number of claimants that would receive direct payments turned out to be higher than in actuality once the eligibility criteria was considered and Québec claimants were excluded.
11Second there was a smaller number of extended warranty claims than anticipated.
[12]
Proposed Amended Distribution Protocol
In light of the residue, the Representative Plaintiffs request an Amended Distribution Protocol.
13Under the Amended Distribution Protocol, upon receipt of the Claims Administrator’s Report, Class Counsel will consider what should be done with any unused or forfeited amounts that may remain in the Settlement Fund and will schedule an appearance before the Court to provide a final report, make recommendations and seek direction from the Court with respect to the allocation of those amounts.
14Given that the amounts payable in the Bosch Settlement were based on the identification of certain shortfalls, Class Counsel’s proposal is to simply distribute the residue amongst all direct benefit claimants who cashed their cheques (the “Residue Distribution”).
15RicePoint has advised that the costs for administering the Residue Distribution will be approximately $20,000.
16Class Counsel propose a pro-rata distribution of the residue and anticipate that the Residue Distribution, and the additional administration costs associated with it, should extinguish the fund. However, to the extent there is any additional residue, Class Counsel propose to distribute funds to persons who have a history of cashing their cheques. It is estimated that the additional payment to class members would be approximately $550 per person.
17Class Counsel propose that RicePoint distribute any remainder to the Law Foundation of Ontario’s Access to Justice Fund.
18Under the Settlement Agreement, Bosch has no right or standing to approve the Distribution Protocol. On this motion, it takes no position.
[19]
Disposition
By this endorsement I approve the revised distribution protocol. Order accordingly.
20By this endorsement, pursuant to s. 27.1.(17) of the Class Proceedings Act, 1992, I approve the Distribution Report of the court appointed claims administrator, RicePoint Administration Inc., dated March 23, 2023. Order accordingly.
21I have signed the two Orders.
Perell, J.
Released: August 16, 2023.